Industrial Board of Appeals

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Board Procedures

The following is information about the Board and the procedures it follows to review an order of the Commissioner:

About the NYS Industrial Board of Appeals

The Board is a neutral agency that is separate from the Department of Labor (DOL). The Board independently reviews certain orders issued by the Commissioner when a petitioner timely files a petition with the Board.

The Board does not have access to, or knowledge of, any papers in the DOL’s files and does not conduct an investigation into claims that are raised in a petition in order to reach a decision. Rather, in most cases the Board designates a neutral hearing officer to preside at a hearing at which evidence is taken. The parties before the hearing officer are the petitioner and the Commissioner who is represented by an attorney. A decision of the Board in reviewing an order of the Commissioner is based on the evidence in the record of the hearing. The petitioner has the burden to prove the claims that it asserts in its petition and any amendments to the petition.

The Board’s review of an order of the Commissioner follows the procedures contained in the Board’s Rules of Procedure and Practice (Rules). See 12 New York Code of Rules and Regulations (NYCRR) Part 65 et seq.

Required Forms

If you are represented by an attorney or anybody who received a fee for representing you, a Notice of Appearance form must be completed by that attorney or non-attorney representative. If you are represented by another person other than an attorney, please complete a Designation of Representative form. Your cooperation in expeditiously returning the completed form to our office is appreciated. Completing the forms with false information or signing someone else’s name and then filing the form with the Industrial Board of Appeals may be a crime. See Penal Law articles 170 and 175.

Before the Hearing

Before a hearing is conducted, a pre-hearing telephone conference may be held. The petitioner or its representative, the Board hearing officer, and an attorney for the Commissioner participate in the telephone conference. During the conference, the parties discuss the issues of the case, including the possibility of settlement, the hearing date, and the petitioner or its representative has an opportunity to ask questions about the Board’s procedures and to discuss the possibility of settlement.

  1. The parties are encouraged to settle their dispute. You may discuss settlement on your own. Settlement discussions may occur at any time.
  2. At least two weeks before the hearing date you should exchange copies of the documents that you intend to move into evidence at hearing.
  3. Rule 65.20 governs the issuance of subpoenas. A request for subpoenas must be made well in advance of the hearing date to allow for mailing, service and possible motion(s). You must use Board-authorized subpoenas which you may find on the Board’s website under Forms.

The Hearing

  1. A hearing date will be set forth in a Notice of Hearing. Please assume that the hearing will take an entire business day; scheduling conflicts on the day of hearing will not be grounds for an adjournment.
  2. An Interpreter will be provided at hearing if you notify the Board with sufficient notice prior to hearing.
  3. Beside the Notice of Hearing, you will not receive any other reminders of your hearing.
  4. If Petitioner fails to appear at hearing, it is likely that the case will be dismissed. See the Board’s Rules of Procedure and Practice (Rules) 65.24.
  5. The hearing is a formal legal proceeding at which evidence is taken. Evidence is the sworn testimony of witnesses and documents that are both relevant to your case and contain reliable information. The hearing is not an informal discussion. You must have all of your evidence at the hearing, including all of your witnesses and four (4) copies of each document that you want the Board to consider in reaching its decision. After the hearing is over, you will not be permitted to add other evidence.
  6. The Board’s decision will be based only on the evidence (testimony and documents) presented at hearing and admitted into evidence at the hearing by the Board’s hearing officer.
  7. The Petitioner(s) has (have) the burden (responsibility) to prove that the Respondent Commissioner of Labor’s order is unreasonable and/or invalid.
  8. Please read Sub-part E of the Rules which governs Board hearing.

Miscellaneous

The Board will not cancel a hearing date unless it receives either a fully executed stipulation of settlement, including a provision that the petition is withdrawn, or a letter signed by both parties (or their representatives) that states that a settlement has been reached and that the Petitioner withdraws the petition.

Case Processing

The above is a general description of the procedures before the Board. However, this description of Board procedures is not comprehensive and is not intended to represent that your case will be processed in exactly this way; it is only to let you know, as a general matter, what may occur.

Please be advised that the Board due to the volume of correspondence that we receive, will not accept any correspondence or pleadings by fax without prior permission, unless it is a time sensitive request related to a scheduled hearing.